Z v Complaints Assessment Committee
[2007] NZCA 91
•22 March 2007
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NOTE: HIGH COURT ORDER SUPPRESSING PUBLICATION OF THE NAME AND IDENTIFYING PARTICULARS OF THE APPELLANT INCLUDING DETAILS OF HIS PRACTICE AND ITS LOCATION REMAINS IN FORCE
IN THE COURT OF APPEAL OF NEW ZEALAND
CA231/05 [2007] NZCA 91
BETWEEN Z Appellant
ANDCOMPLAINTS ASSESSMENT COMMITTEE
First Respondent
ANDTHE DENTISTS DISCIPLINARY TRIBUNAL
Second Respondent
Hearing: 8 November 2006
Court: Glazebrook, Chambers and Ellen France JJ Counsel: A H Waalkens QC and A L Credin for Appellant
J A Farish and A M Toohey for First Respondent
M Dalmer for Second Respondent (given leave to withdraw) Judgment: 22 March 2007 at 11 am
JUDGMENT OF THE COURT
A The appeal is dismissed.
BThe appellant is to pay the first respondent costs of $3,000 plus usual disbursements. We certify for second counsel.
Z V COMPLAINTS ASSESSMENT COMMITTEE AND ANOR CA CA231/05 22 March 2007
REASONS OF THE COURT
(Given by Ellen France J)
Table of Contents
Introduction [1] Factual background [4] The disciplinary charges [10] The key statutory provisions [13] Judgment of the High Court [20] What is the standard of proof? [21] (i) Submissions [21]
(ii) Discussion [24] Abuse of process [38] Result [50]
Introduction
[1] The Complaints Assessment Committee (“CAC”), a body established under the Dental Act 1988, has decided that a number of complaints against the appellant, a dentist, should be heard by the Dentists Disciplinary Tribunal, the second respondent. The appellant says it is an abuse of process for the Tribunal to consider a number of these complaints because he has been acquitted by a jury of criminal charges arising from the same alleged conduct.
[2] The appellant brought judicial review proceedings challenging the validity of the CAC’s decision. In a judgment delivered on 6 October 2005, Fogarty J dismissed the claim except in relation to some of the charges formulated in relation to the complaints (now reported as Z v Complaints Assessment Committee [2006] NZAR 146). The appellant appeals against the decision not to quash the remaining charges. The appellant’s case is that the criminal standard of proof or a standard very close to that should be applied to these disciplinary proceedings. If that is the standard then, he says, to hear the charges based on these complaints is an abuse of process.
(a) What is the standard of proof applicable to these disciplinary proceedings?
(b) Does the reference of these charges to the Dentists Disciplinary
Tribunal amount to an abuse of process?
Factual background
[4] The appeal relates to disciplinary charges resulting from complaints about the appellant’s conduct by two patients, L and P.
[5] Ms P attended the appellant’s dental rooms in September 1989. She had some teeth extracted. She was sedated with Hypnovel, a sedative which can cause hallucinations.
[6] Ms L saw the appellant for the extraction of some teeth in January 2001. She was also sedated with Hypnovel.
[7] Both Ms P and Ms L complained to the police saying they had been indecently assaulted by the appellant during these dental procedures.
[8] The appellant was charged with indecent assault. In terms of Ms L, the charge was of placing her hand on his penis. The same allegation was made for Ms L together with a further count of touching her breasts over her clothing whilst she was in the dental chair.
[9] The appellant was acquitted in September 2002 of these and other charges relating to other patients after a jury trial. His defence was that the offending did not occur and the complainants were hallucinating.
[10] There are broadly two categories of charges against the complainants L and P. The first category is administering the drug Hypnovel above the recommended maximum dose. This category encompasses a related charge about the way the drug was administered. The second category relates to the complaints of indecent assault.
[11] The two categories can be seen in the formulation of the charges concerning the complainant Ms L:
1 In the course of his treatment of his patient, [Ms L] on 23 January
2001, …
1.1Administered four 7.5 mg tablets of the sedative drug Hypnovel prior to administering a local anaesthetic, being twice the recommended maximum dose; and
1.2 In administering the Hypnovel as particularised in particular
1.1;
1.2.1Caused [Ms L] to fall asleep in his waiting room, which room was accessible to the general public; and in so causing, showed a total lack of respect for [Ms L’s] feelings and/or dignity; and or
1.2.2Potentially endangered [Ms L’s] wellbeing; and/or exposed [Ms L] to the risk of undesirable side- effects or consequences, including:
1.2.2.1 While she was under sedation, inappropriately and with no clinical reason for doing so, on two occasions exposed his penis and then caused her right hand to touch or come into close contact with his penis; and on one occasion touched [Ms L’s] right breast; … or
[12] The appellant does not challenge the ability to pursue the complaints relating to the administration of the drug (1.1 and 1.2.1).
[13] It is accepted by the parties that the Dental Act 1988 applies although that Act has been repealed and replaced by the Health Practitioners Competence Assurance Act 2003 (see s 219 of the 2003 Act).
[14] The Dental Act makes provision for “the registration and discipline of dentists … and the control of the practice of dentistry and … consolidate[s] and amend[s] the law relating to dentistry” (Long Title).
[15] When a complaint is made about the conduct of a dentist, it is referred to the chairperson of the relevant disciplinary body. The chairperson appoints a CAC in accordance with s 45 of the Act and the complaint is referred to the CAC. The dentist must be informed of the general nature of the complaint and of the intended membership of the CAC considering the complaint. A CAC is comprised of two dentists and a lay member.
[16] The role of the CAC is to decide whether the matter subject of complaint should be considered by the Dentists Disciplinary Tribunal. The CAC has to report its finding on that to the Chairperson of the Tribunal. If the CAC decides the matter should be considered by the Tribunal then the Tribunal’s processes are initiated.
[17] The powers of the Tribunal are set out in s 54 of the 1988 Act. The Tribunal, comprising three dentists and two lay members, can take various actions against a dentist if, after conducting a hearing, the Tribunal is “satisfied” that the dentist has acted in any one of three ways. In particular, where the Tribunal is “satisfied” that the dentist:
(a)Has been convicted, whether before or after the practitioner became registered, by any Court in New Zealand or overseas of any offence punishable by imprisonment for not less than 3 months and that the circumstance of the offence reflect adversely on the practitioner’s fitness to practise as a dentist or as a clinical dental technician or as a dental technician; or
(b)Has been guilty of any act or omission in the course of or associated with the practice of dentistry that was or could have been detrimental to the welfare of any patient or other person; or
(c) Has been guilty of professional misconduct (including, without limiting the generality of the foregoing, professional negligence), -
the Tribunal may, except as provided in subsections (2) and (3) of section 55 of this Act, by way of penalty, do any one of the things authorised by subsection (1) of that section.
[18] Before the Tribunal exercises its powers under s 54, it is obliged to issue a notice stating that the CAC has reason to believe that a ground exists entitling the Tribunal to exercise those powers (s 61(1)(a)). The Tribunal also has to specify the proposed hearing date (s 61(1)(c)).
[19] In terms of s 55(1), the Tribunal may make any one of the following orders: (a) Remove the dentist’s name from the register;
(b) Suspend the dentist for a maximum of 12 months; (c) Impose restrictions on practice for up to three years;
(d)Fine the dentist up to $10,000 (the maximum was increased to this figure from 21 October 1999); or
(e) Censure the dentist.
Judgment of the High Court
[20] In the High Court, the appellant’s main argument was not based, as it is now, on abuse of process. Instead, the appellant relied on the principles against double jeopardy and Fogarty J accordingly focused on those principles. The Judge applied the approach in Daniels v Thompson [1998] 3 NZLR 22 (CA) and concluded that the proposed proceedings before the Tribunal did not attract the principles of double jeopardy. We come back to some of the Judge’s reasoning on that aspect in the context of our consideration of abuse of process.
What is the standard of proof?
(i) Submissions
[21] The appellant’s case is that a higher standard of proof than the balance of probability is necessary in cases of dental (and medical) discipline in order to reflect the seriousness of disciplinary matters for dental and other medical practitioners. The appellant says there is precedent for applying a higher standard in the United Kingdom and also relies on the observation at [94] by William Young J, as he then was, in F v Medical Practitioners Disciplinary Tribunal [2005] 3 NZLR 774 (CA) that proof beyond reasonable doubt was required in disciplinary proceedings.
[22] The appellant advances three options. First, the appellant says that the standard of proof in dental disciplinary cases should be the criminal standard. Alternatively, where the particulars of the disciplinary charge amount to an allegation of a criminal offence, the criminal standard should apply to those particulars. As a further alternative, the appellant says that if a sliding scale of standard of proof is to be adopted reflecting the gravity of the charges, then, on the facts of this case there is no real distinction between the civil and the criminal standards.
[23] The CAC says there is no good reason to change the current civil standard of proof in disciplinary proceedings in the medical and dental contexts. The CAC supports the application of the civil standard adopted by the House of Lords in the case of Re H and Others (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 at 586 per Lord Nicholls of Birkenhead. (See also the discussion in R (N) v Mental Health Review Tribunal (Northern Region) [2006] QB 468 at [70].)
(ii) Discussion
[24] It is plain that these disciplinary proceedings are civil in nature and not quasi-criminal. This point was made in relation to discipline in the medical context by the Supreme Court in Complaints Assessment Committee v Medical Practitioners
Disciplinary Tribunal [2006] 3 NZLR 577 at [19] per Elias CJ, Blanchard, Tipping and Henry JJ and at [102] per McGrath J (dissenting on other grounds).
[25] The Full Court of the High Court in Gurusinghe v Medical Council of New Zealand [1989] 1 NZLR 139 at 155 accepted that the standard of proof was the civil standard although the Court saw sufficient analogy “in some respects” to criminal proceedings for assistance to be derived from the criminal rules of procedure. The focus in that case was however on ensuring that analogous rules of fairness applied.
[26] We do not accept the appellant’s argument that, despite the nature of the proceedings, the criminal standard of proof (or something very close to it) is required. We see no reason to depart from the current approach which is to apply the civil standard. We think that the position is most clearly set out in Re H. In that case, Lord Nicholls observed at 586 that:
The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury. A stepfather is usually less likely to have repeatedly raped and had non-consensual oral sex with his under age stepdaughter than on some occasion to have lost his temper and slapped her. Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.
[27] The civil standard reflects the nature of the proceedings and the procedure applicable to the dental disciplinary bodies. These sorts of factors were persuasive in Guy v Medical Council of New Zealand [1995] NZAR 67 at 77 (HC) where Tipping J concluded that the civil standard applied to medical disciplinary proceedings. Tipping J emphasised, first, the inquisitorial nature of the Medical Council’s inquiry. Second, there was the fact that the Council was not bound by the strict rules of evidence. Third, the proceedings were not criminal or “even” quasi-criminal in character. Finally, there were difficulties in deciding when,
in the case of an allegation amounting to a serious crime, the criminal standard should be applied and when it should not.
[28] The civil standard is also apposite given the purpose of the disciplinary proceedings. This is a protective jurisdiction designed to protect the public. The purpose is different from that of a criminal trial. As McGrath J put it in Complaints Assessment Committee v Medical Practitioners Disciplinary Tribunal at [102] the purpose “is not to punish misbehaviour” but “to ensure that appropriate standards of conduct are met”. (See also Re a Medical Practitioner [1959] NZLR
784 at 800 (CA) and Dental Council of New Zealand v Bell [1992] 1 NZLR 438 at
445 (HC).)
[29] There is a helpful, recent, discussion of the difference in purpose in the United Kingdom in Meadow v General Medical Council [2007] 1 All ER 1 where the English Court of Appeal held that the immunity of an expert witness did not extend to disciplinary proceedings by the professional body of which he was a member. Sir Anthony Clarke MR at [32] summarised the position as follows:
[T]he purpose … is not to punish the practitioner for past misdoings but to protect the public against the acts and omissions of those who are not fit to practise. The [disciplinary body] thus looks forward not back. However, in order to form a view as to the fitness of a person to practise today, it is evident that it will have to take account of the way in which the person concerned has acted or failed to act in the past.
[30] Finally, in our view the civil standard best reflects the statutory regime. A number of features are relevant here. First, the Tribunal’s role is to consider a range of conduct, from conduct reflecting adversely on fitness to practice to professional negligence. The Act requires the Tribunal to be “satisfied” the relevant conduct has occurred and it would be very odd to require the Tribunal to be “satisfied” about professional negligence to the criminal standard (s 54(c)). Second, we note there is nothing about the CAC’s procedure which suggests the criminal standard applies. Finally, and more importantly, s 55 expressly contemplates that the Tribunal may be dealing with a matter which also constitutes a criminal offence. Hence, s 55(3) states:
Where a Tribunal is dealing with any matter that constitutes an offence for which the person has been convicted by a Court, the Tribunal shall not impose a fine pursuant to subsection (1)(d) of this section.
[31] For these reasons, we do not agree with William Young J’s observation in F that the criminal standard applied. The observation was obiter and the other two members of the Court did not express any view on this aspect.
[32] It also follows from what we have said that we do not favour an approach which would involve two different standards. There are practical difficulties, adverted to by Tipping J in Guy at 65, in determining when and to what a higher standard would apply if different standards are to be used. To illustrate, in the present case there are charges based on complaints of over-administering the sedative. Such conduct conceivably could give rise, depending on the effect of the drugs on the patient, to serious charges. Presumably, on the appellant’s analysis, because there were in fact no such criminal charges in relation to that conduct, the lower standard would apply. Given that the civil standard can reflect the seriousness of the disciplinary charges no more in our view is required.
[33] The civil standard is adopted in a number of other jurisdictions. In Arvind v Walton NSWSC CA40431 21 February 1995 the Supreme Court of New South Wales dealt with an argument about the standard of proof before the Medical Tribunal where the complaint related to conduct which, if proven, would comprise sexual assault. The Court repeated an observation from an earlier judgment that the charges had to be proved “to a very high level of satisfaction”. The Court made the point that this did not mean a higher standard, rather, it was a recognition “of the fact that the degree of satisfaction for which the civil standard of proof calls varies according to the gravity of the fact to be proved.”
[34] Similarly, in Canada in Re Bernstein and College of Physicians and Surgeons of Ontario (1979) 15 OR (2d) 447 (HC) the Court made the point that the standard of proof was the civil standard but said that proof must be clear and compelling and based on cogent evidence given the gravity of the consequences.
[35] The appellant submitted that his approach finds support in the United Kingdom in the context of disciplinary proceedings for the legal profession. There the criminal standard applies: Campbell v Hamlet [2005] 3 All ER 1116 (PC). However, that reflects the fact that, as Lord Brown of Eaton-under-Heywood observed at [21], the Bar’s Code of Conduct required the tribunal to apply the criminal standard.
[36] There are some differences between the statutory regime governing medical discipline in the United Kingdom and that set out in the Dental Act. There is though, in that context, some support for the appellant’s argument that where the events giving rise to the disciplinary charges would also found serious criminal charges, then the criminal standard should apply. There is an observation to that effect in McAllister v General Medical Council [1993] AC 389 at 399 (PC). That observation is however obiter and pre-dates Re H. In the later case of Sadler v General Medical Council [2003] 1 WLR 2259, their Lordships said that the standard of proof in determining the primary facts “in the generality of cases” was the ordinary civil standard. Their Lordships did at [73] envisage the possibility of “exceptional” cases (generally, more serious charges) where a “heightened” civil standard may be appropriate. That comment was not central to the decision. It was made with reference to Re H and must mean no more than what was said in Re H.
[37] For these reasons, we conclude that the standard of proof is the civil standard and that it operates in the manner set out by Lord Nicholls in Re H.
Abuse of process
[38] The appellant approached the matter on the basis that if the standard of proof was the civil standard then the abuse of process argument failed. We deal with abuse of process because we heard argument on the matter and because the principles were dealt with by Fogarty J albeit in response to an argument which was different in focus.
[39] Essentially, the appellant says the CAC’s decision is an abuse of process because the appellant should not have to face a re-run of the same issues. The
appellant emphasises that this is not a case where the disciplinary charges will involve new evidence. It is plain, the appellant submits, that the charges here involve a collateral attack on the decision of the District Court.
[40] The abuse of process doctrine is a broad one applicable in varied circumstances: Chamberlains v Lai [2006] NZSC 70. Unlike issue estoppel and res judicata, abuse of process is not limited to the same parties. As the appellant says, the Court’s duty to prevent abuse of process is not limited to fixed categories: Chamberlains v Lai at [63]. The majority of the Supreme Court in Chamberlains v Lai at [66] took the view that a collateral challenge to a subsisting conviction will “usually” be an abuse of process. There may be exceptions. The underlying concern reflected in this position is that it is not helpful to have inconsistent Court determinations on the question of guilt.
[41] The relevant interests, that of finality in litigation and protecting public confidence in the administration of justice, apply also where there has been an acquittal, although less starkly. As this Court said in Daniels v Thompson at 50, an acquittal:
[M]erely embodies the conclusion that the elements of a criminal offence have not been established to the required standard.
[42] For that reason, the Court in Daniels said at 50 that an acquittal does not operate as a “general bar” to civil proceedings based on the same act or omissions. The majority in Chamberlains v Lai emphasised the place of appeals as the means of correction in the criminal justice system. The appeal opportunities following an acquittal are limited.
[43] The different, protective, purpose of the disciplinary proceedings also tells against an abuse of process and as we have already noted, the Dental Act expressly envisages parallel proceedings. We acknowledge the possibility that a particular combination of facts in the dental disciplinary arena may give rise to an abuse of process. However, those situations are likely to be rare. The matter is to be given a “broad, merits-based judgment” taking account of all the public and private interests
and all the facts (Johnson v Gore Wood & Co [2002] 2 AC 1 at 31 (HL) per
Lord Bingham of Cornhill).
[44] The factors on which we rely were relevant to this Court in Re a Medical Practitioner [1959] NZLR 784. In that case, an argument that disciplinary proceedings could not continue in relation to allegations of indecent assault after the practitioner, a doctor, had been acquitted of indecent assault was rejected.
[45] Gresson P emphasised the purpose of the disciplinary proceedings, the fact that the disciplinary proceedings were not criminal or quasi-criminal, and the limited effect of an acquittal. The fact that there was no power to remove the doctor’s name from the register was also seen as relevant. (That latter factor is not a feature of dental discipline.)
[46] Turning then to the present case, after considering the relevant authorities, Fogarty J observed that the protective purpose of these types of proceedings “remains distinct” whatever the standard of proof. Fogarty J went on to note that there is room for an expert professional disciplinary tribunal to differ from a jury on the same questions. The Judge at [32] set out this passage from the CAC’s decision:
The CAC finds it strange that each of the complainants who were sedated, mention the same set of circumstances, that is, they allege their right hand was in close contact with [the practitioner’s] penis at some time during the treatment. It was explained in the District Court as hallucinations and accepted as evidence which the jury obviously considered in arriving at their not guilty verdict.
While admitting that hallucinations do take place with the two sedative drugs used, and some of these are of a sexual nature, the CAC does not believe that the hallucinations are always so site or mode specific.
[47] Fogarty J said that the CAC had then evaluated the evidence in more detail and had consulted a specialist anaesthetist. The Judge continued:
[33] … In short the Committee regarded all four complainants as genuine in their beliefs and their stories as believable. The Committee did not find evidence of collusion between any of them. The Committee noted that the dose level of the drugs used in sedation of all three patients was well in excess of the average amount used by other dental practitioners and above the advised maximum dose of the New Zealand Society for Sedation and Anaesthesia in Dentistry.
[34] These are all rational reasons why the CAC doubted the judgment of the jury of lay persons and considered it reasonable for the case to be considered by the Tribunal. They are also reasons why there were charges laid in respect of levels of sedation, in addition to the sexual abuse charges.
[48] Having established that there was nothing in the Dental Act which affected the approach, Fogarty J concluded that the principles of double jeopardy did not apply.
[49] In this case, the relevant factors have been carefully evaluated by the Judge. This is a discretionary matter and one to which Fogarty J has applied the correct principles. There has been no error in the Judge’s approach and we agree there is no abuse of process in allowing these charges to proceed.
Result
[50] For these reasons, the appeal is dismissed. The first respondent having succeeded is entitled to costs of $3,000 plus usual disbursements. We certify for second counsel. The High Court made an order suppressing the publication of the name or details that might identify the appellant including details of his practice and its location.
Solicitors:
Fisher Lamberg, Auckland for Appellant
Raymond Donnelly & Co, Christchurch for First Respondent
D’Ath Partners, Wellington for Second Respondent